Case ID:167177

Morris Kiruja Mpungu & another v Margret Ngiri Muchiri & another [2020] eKLR

Case Metadata

Case Number:

Environment and Land Case 6 of 2018

Parties:

Morris Kiruja Mpungu & Genesio Kiraithe Mpungu v Margret Ngiri Muchiri & Robert Nyaga Rutere

Date Delivered:

02 Dec 2020

Case Class:

Civil

Court:

Environment and Land Court at Chuka

Case Action:

Ruling

Judge(s):

Peter Muchoki Njoroge

Citation:

Morris Kiruja Mpungu & another v Margret Ngiri Muchiri & another [2020] eKLR

Advocates:

Evans Mutegi h/b Miss Muiruri for the Applicant.

Court Division:

Environment and Land

County:

Tharaka Nithi

Advocates:

Evans Mutegi h/b Miss Muiruri for the Applicant.

History Advocates:

One party or some parties represented

Case Outcome:

Application partly allowed.

Disclaimer:

The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT CHUKA

CHUKA ELC CASE NO. 06 OF 2018

IN THE MATTER OF THE REGISTRATION OF LANDS ACT NO. 3 OF 2012 SECTION 28(H)

AND IN THE MATTER OF ORDER 37 RULE 7 CIVIL PROCEDURE RULES

AND IN THE MATTER OF SECTION 38 OF THE LAW OF LIMITATION OF ACTIONS ACT CHAPTER 22

LAW OF KENYA

AND IN THE MATTER OF AN APPLICATION BY MORRIS KIRUJA MPUNGU AND GENESIO KIRAITHE MPUNGU THAT THE COURT DO MAKE A DECLARATION THAT THEY ARE ENTITLED TO 2.80 ACRES COMPRISED IN L.R. NO. MUTHAMBI/EREGA/204 UNDER THE DOCTRINE OF ADVERSE POSSESSION

AND IN THE MATTER OF AN APPLICATION BY MORRIS KIRUJA MPUNGU AND GENESIO KIRAITHE MPUNGU THAT THEY BE REGISTERED WITH 2.80 ACRES COMPRISED IN L.R. NO. MUTHAMBI/EREGA/204 WHICH THEY HAVE ACQUIRED UNDER THE DOCTRINE OF ADVERSE POSSESSION

MORRIS KIRUJA MPUNGU....................................................1

ST

APPLICANT

GENESIO KIRAITHE MPUNGU............................................2

ND

APPLICANT

AND

MARGRET NGIRI MUCHIRI..............................................1

ST

RESPONDENT

ROBERT NYAGA RUTERE.................................................2

ND

RESPONDENT

RULING

1. The Notice of Motion in this application reads as follows:

NOTICE OF MOTION

(In Pursuance to Order 42, Rule 6, Order 22, Rule 22 of the Civil Procedure Rules and Sections 1A, 1B and 3A of the Civil Procedure Act and all other enabling provisions)

TAKE NOTICE

that this Honourable Court will be moved on the day of 2020 at 9:00 O’clock in the forenoon or soon thereafter as Counsel for the Appellants/Applicants may be heard on an application for

ORDERS

: -

1.

THAT

, this Application be certified urgent, service of the same be dispensed with and it be heard

ex-parte

in the first instance owing to its urgency.

2.

THAT

,

the Honourable Court be pleased to issue Permanent ORDERS of stay of execution pending

inter partes

hearing.

3.

THAT

,

the Honourable Court be pleased to issue

Permanent ORDERS of Stay of Execution

pending

inter partes

hearing.

4.

THAT

, in the alternative to Order 3,

the Honourable Court be pleased to issue

Temporary ORDERS of Stay of Execution

pending

inter partes

hearing.

5.

THAT

, this Honourable Court be pleased to stay the execution of the Judgement dated

17.11.20

and Decree of the Court pending the hearing and determination of the intended appeal.

6.

THAT

, this Honourable Court be pleased to make such further Orders to meet the end of justice.

7.

THAT

, costs of this application be in the intended appeal.

WHICH APPLICATION

is supported by the Affidavit of

GENESIO KIRAITHE

MPUNGU and

made on the following

GROUNDS

:

1.

THAT

, the Advocates for the Respondents served us with a letter dated 17.11.20 demanding that we vacate from the property L.R NUMBER MUTHAMBI/EREGA/204 being 2.80 Acres within Fourteen (14) Days pursuant to the Judgement of the Court delivered on 17.11.20.

2.

THAT

, the Applicants are aggrieved by the whole of the Judgment of this Honourable Court made by Honourable Justice P.M Njoroge on 17.11.20.

3.

THAT

, the Applicants/Appellants being dissatisfied with the said judgment has filed a Notice of Appeal and letter requesting for typed proceedings.

4.

THAT

, the Applicants have an arguable appeal.

5.

THAT

, the Applicants will suffer substantial loss if the stay of execution is not granted.

6.

THAT

, the Respondents will not suffer any prejudice or damage that cannot be compensated by way of costs should the appeal be unsuccessful.

7.

THAT

the Applicants are ready to offer a security as a condition for stay of execution to be held in a joint interest earning account.

8.

THAT

, the Application has been made without unreasonable delay.

DATED at NAIROBI this 30

TH

day of NOVEMBER 2020

BIKUNDO & ASSOCIATES ADVOCATES,

ADVOCATES FOR THE APPLICANTS

2. The Application is buttressed by the affidavit of Genesio Kiraithe Mpungu, the 2

nd

applicant, which states:

SUPPORTING AFFIDAVIT

I,

GENESIO

KIRAITHE MPUNGU residing

in Chuka, Muthambi Location within the Republic of Kenya, aforesaid do hereby make oath and state as follows: -

1.

THAT

, I am the 2

nd

Applicant herein and as such conversant with the material facts and proceedings of the matter herein, and I am therefore competent and duly authorised to swear this Affidavit on mine and the 1

st

Applicants behalf.

2.

THAT

, I am advised by our Advocates on record

Messrs

BIKUNDO & ASSOCIATES ADVOCATES

, that the Judgment was entered in this matter by

Honourable Justice P.M. Njoroge

on

17.11.20

against the Applicants dismissing the suit with costs for our claim of

2.80 Acres

comprised in

Land Reference Number Muthambi/Erega/204

.

3.

THAT

, being dissatisfied with the said judgment, we intend to appeal against the decision by

Honourable Justice P.M. Njoroge

made on

17.11.20

Honourable and we have instructed our Advocates to file the intended appeal in the Court of Appeal.

4.

THAT

,

we only managed to follow up with the registry and get a copy of the Judgement on

26.11.20

as our previous Counsel on record went mute on us and we were in the dark the whole time

(Annexed herewith is a copy of the said Judgement Pages 1-20).

5.

THAT

, on

26.11.20

the Advocates for the Respondents/Defendants, through the Chief of Muthambi Area Location, caused to be served us a letter dated

17.11.20,

threatening to evict us from our only home and property being the

2.80 Acres

comprised in

Land Reference Number Muthambi/Erega/204

within

Fourteen (14) Days

from the date of the said letter (

Annexed herewith is a copy of the said Letter at Page 21).

6.

THAT

,

further, the eviction notice warns us to vacate the premises immediately and leave behind all the developments we have made on the land henceforth.

7.

THAT

,

we are devastated by the abrupt and sudden notice to vacate a property where we have occupied, stayed, developed in terms of structures (a house, Cow Shed, Tea Plantation) and called home for the last

Forty Six (46) Years

(

Annexed herewith are copies of the Photos of the property at Pages 22-42).

8.

THAT

,

I have raised our children in that land and they are all grownups now and in fact, one my daughter Doreen Mpungu did her wedding at the said property on

14

th

August, 1999

and we have buried my father on the said property who died in the year

1998.

9.

THAT

,

I am now

74 Years

and being asked to vacate a property that I have stayed on with my family for

Forty Six (46) Years

within

14 days

is a great injustice and we are asking this Honourable Court to do Justice.

10.

THAT

,

we have since filed a Notice of Appeal and Letter requesting for typed Proceedings and intend to Appeal against the entire Judgement of the

11. Court (

Annexed herewith is a copy of the Notice of Appeal and Letter requesting for proceedings Pages 43 to 44).

12.

THAT

,

I am advised by our said Advocates, which advice I verily believe to be true, that we, the Applicants have an arguable appeal with a likelihood of success.

13.

THAT

, our Advocates on record have advised us which advice we verily believe to be true that the Application has been brought without unreasonable delay and any delay was not occasioned by the Applicants whatsoever.

14.

THAT

,

the Applicants are ready and willing to offer a security as a condition for stay of execution to be held in a joint interest earning account.

15.

THAT

, we are advised by our said Advocates that the Respondents will not suffer any prejudice or damage that cannot be compensated by way of costs should the appeal be unsuccessful.

16.

THAT

, I swear this affidavit in support of the Applicants application herein.

17.

THAT

, what is deposed to herein is true to the best of my knowledge, information and belief save wherein otherwise stated.

SWORN

by the said

GENESIO KIRAITHE MPUNGU

At CHUKA

This 30

TH

day of NOVEMBER 2020

3. When the application came for exparte hearing on 2

nd

December, 2020 Mr. Mutegi, for the applicant, urged the court to grant prayer No. 2 for stay of execution, the urgency of the prayer being that the applicant had been threatened with immediate eviction. Mr. Mutegi told the court that the applicant was willing to deposit with court a deposit for security.

4. I have considered the pleadings proffered herein and the submissions made by the applicants’ advocate. At this exparte stage, I issue the following orders:

a) Prayer 3 for permanent stay of execution pending interpartes hearing of this application is denied.

b) In the greater interest of Justice, a temporary conditional stay of execution is hereby granted

PROVIDED

that the applicant deposits with court as security a sum of Kenya Shillings Eight Hundred Thousand (Kshs.800,000/=) within 14 days of today

FAILING

which the conditional stay of execution granted herein will automatically lapse.

c) The application to be properly served upon the respondents within 7 days of today.

d) Interpartes hearing of the application on 16/12/2020.

Delivered in open Court at Chuka this 2

nd

day of December, 2020 in the presence of:

CA: Ndegwa

Evans Mutegi h/b Miss Muiruri for the Applicant.

P.M. NJOROGE

JUDGE